According to a New Hampshire judge, “It is at least a jury question whether as plaintiff alleges, ‘public policy encourages a mother to breastfeed her child, particularly where breastfeeding is imperative for the child’s health.’”  For this reason, the court denied an employer’s motion to dismiss a New Hampshire woman’s wrongful discharge case after she asked her employer to allow her to breastfeed her newborn son during the workday.  Plaintiff Kate Frederick will now have her case heard before a jury in September 2019.

In 2012, Frederick’s then-infant son refused to drink from a bottle for the first 4.5 months after he was born.  As a result, Frederick had to breastfeed him.  When, after giving birth, Frederick sought to return to her job at the New Hampshire Department of Health and Human Services (DHHS) during the same year, Frederick asked her supervisor if she could use her break time to breastfeed her baby at a daycare facility less than a half mile away from her office.  The supervisor denied the request, but told Frederick there was a lactation room available for her to privately pump breast milk into a bottle.

Frederick told her supervisor this was not an option since her son, Devon, would not take a bottle.  Nevertheless, Frederick’s supervisor continued to deny Frederick permission to leave the premises, get extended break time to go feed her infant, or even arrange for the baby to be brought to work for Frederick to breastfeed him in the lactation room.  The lactation room, her supervisors said, was “just for pumping.”  The employer’s position did not change even after Frederick presented a letter from her medical provider that explained her need to breastfeed the child.  DHHS eventually terminated Frederick’s employment.

Under the federal Fair Labor Standards Act, 29 U.S.C. § 207(r), an employer must provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has the need to express the milk.”  Additionally, the employer must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”  These provisions on breastfeeding do not apply to an employer with fewer than 50 employees if the required actions “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  However, the legislature made clear that the federal law on reasonable break time for nursing mothers does not preempt state laws that might provide greater protections to employees.

New Hampshire has no such employment law that would provide greater protection to employees who need to express breast milk.  The only New Hampshire law on point states it will not be considered indecent exposure for a mother to breastfeed her child.  That law, RSA 132:10-d, provides: “to restrict or limit the right of a mother to breast-feed her child is discriminatory.”

In Frederick’s case, DHHS complied with the federal law by providing a private room that Frederick could have used to express breast milk—albeit into a bottle.  Further, DHHS has conceded that, under New Hampshire law, it would have had to allow Frederick to breastfeed her child during normal breaks in public spaces.  Failing to allow this would “restrict or limit” Frederick’s right to publicly breastfeed her child, and would violate RSA 132:10-d.  Paradoxically, Frederick, while at work, could feed her child in public, but only pump her milk in private.

Beyond this gap in the law, another question raised by this litigation is whether an employer needs to make reasonable accommodations—such as allowing for longer breaks during the day and/or permitting an employee to leave the premises—when a mother is required to breastfeed her infant.  However, the case going to trial will not settle this issue.  That is because Frederick’s case is based on wrongful termination.  Under this type of claim, Frederick must show that (1) her employer was motivated by bad faith, malice, or retaliation in terminating her employment, and (2) she was discharged because she performed an act that public policy would encourage.  The real question for the jury, then, will be whether breastfeeding an infant who cannot take a bottle is an act the public seeks to encourage.